Shibu M. George vs State Of Kerala & Ors.

Soumen Sen, C.J.

This appeal arises from a judgment passed by the learned Single Judge in a writ petition, in which the respondent No. 2 invoked the risk purchase clause for execution of the balance work through another contractor on the ground that the writ petitioner failed to execute the contract within the extended period.

The learned Counsel for the appellant has relied upon Ext. P10 issued by the Assistant Engineer, Project Implementation Unit, and the Assistant Executive Engineer to show that, in view of the damage caused to the road, an additional estimated amount of Rs. 3.50 crores would be required for the improvement of the road in question.

It appears that, subsequent thereto, on the basis of the request made by the contractor, the time was extended twice till 30th May 2023. The learned Single Judge found that even within the aforesaid extended period, 50% of the work had not been completed, although the site had been handed over to the writ petitioner on 22^nd February 2022.

Any other factual issues involved in deciding the writ petition may not be required to be considered, and if such issues are required to be determined, it would be eminently proper that they should be tried in a properly instituted suit. Disputed questions of fact are best tried and decided in a suit and not in a writ petition. On the basis of the facts recorded in the impugned judgment, we do not find any reason to interfere with the said judgment, as the learned Single Judge has properly exercised his discretion in refusing to entertain the writ petition on the aforesaid facts, which are relevant for deciding a writ petition.

However, we make it clear that the judgment of the learned Single Judge, or its affirmation by this Court, shall not preclude the petitioner from initiating appropriate civil proceedings for appropriate reliefs. As the writ petition and this appeal have been heard and decided only on affidavits, without any oral evidence, the findings regarding culpable negligence on the part of the writ petitioner shall not be treated as final. In the event that such proceedings are instituted, the said observations shall not stand in the way of any civil court to decide the issues, if raised, in accordance with law.

Moreover, as submitted by the learned Counsel for respondent No. 2, the petitioner has not yet been blacklisted. In any event, any decision to blacklist the petitioner shall be taken only after following due process of law and after affording the petitioner a reasonable opportunity of hearing. It is needless to mention that the respondent, while deciding the issue of blacklisting, shall be guided by the principles laid down by the Hon’ble Supreme Court in Erusian Equipment and Chemicals Ltd v. State of West Bengal and another^{11.(1975) 1 SCC 70}.

The Writ Appeal stands disposed of.